In a democracy, the judiciary performs several functions. It acts as a check on the executive branch, settles disputes between individuals, firms and governments and interprets the Constitution to further democratic rights. But for citizens, there is no function as important as its role in safeguarding personal liberty and firewalling an individual from unjust, prolonged incarceration. In some ways, this is at the core of the constitutional promise of the right to life and dignity, and becomes even more important
In a democracy, the judiciary performs several functions. It acts as a check on the executive branch, settles disputes between individuals, firms and governments and interprets the Constitution to further democratic rights. But for citizens, there is no function as important as its role in safeguarding personal liberty and firewalling an individual from unjust, prolonged incarceration. In some ways, this is at the core of the constitutional promise of the right to life and dignity, and becomes even more important in countries where State capacity is often deficient, making legal proceedings a protracted process.
Therefore, Chief Justice of India Dhananjaya Y Chandrachud’s decision last week to prioritise matters of personal liberty and grant immediate hearing to petitions asking for bail is a laudable step. Justice Chandrachud said a full court meeting adopted a resolution to hear 10 bail matters and 10 transfer petitions (involving marital disputes where a spouse requests the transfer of a case to a different place) each day of the week, underlining that a decision was taken to give precedence to cases where petitioners have been inside jails or fear imminent curtailment of liberty. This can have an immediate impact because the criminal justice system is littered with examples where people are incarcerated without being convicted of any crime due to unjust arrests and denial of bail, despite the Supreme Court consistently underlining, for almost four decades, that bail should be the rule and jail the exception. The court has also laid down a triple test doctrine, which says an accused can be granted bail if they’re not at flight risk, liable to tamper with evidence or influence witnesses, but to little avail, especially in the lower judiciary.
Procedural infirmities and prosecutorial zeal have meant that many of these guidelines are not adhered to. But the apex court’s decision can move the needle by pushing for a change in mindsets, especially of trial judges who act as the first arbiters of personal liberty, and the police, which must refrain from filing flimsy charges just to secure incarceration. Such a shift in attitude will be crucial to ensure that this key right is not limited to those in big cities, with access to top lawyers. To reduce the 427,000-odd population of jailed undertrials, there is no other way but to tackle this crucial rights issue head-on.
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